HKSAR v. Mehmood Malik Zahid

HCMA1002/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1002 OF 2009

(ON APPEAL FROM TMCC3268 OF 2009)

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BETWEEN

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Before:  The Honourable Madam Justice Beeson

Date of Hearing:  2 February 2010

Date of Judgment:  2 February 2010

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J U D G M E N T

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1.This Appellant, a Pakistani national, pleaded guilty in the Magistracy to one charge of Remaining in Hong Kong without the Authority of the Director of Immigration after having landed unlawfully in Hong Kong.

2.He was convicted and sentenced to 15 months’ imprisonment and appeals now against that sentence on the general ground that it was too severe.

3.The facts, which were admitted by the Appellant, establish that on 1 September 2009 he was checked by police who had stopped a public light bus in a snap inspection of passengers.  He was unable to produce any proof of identity for inspection when required to do so.  After further inquiries, he admitted he was an illegal immigrant, and said he had sneaked into Hong Kong from mainland China on 7 August 2009.

4.The Appellant had one previous conviction in March 2003 for Breach of Condition of Stay.  He had been sentenced to 1 month’s imprisonment, suspended for 2 years, on that charge.

5.The Appellant’s representative advised the Magistrate that he was single and aged 27.  He was a Pakistani national who worked as a clerk in a civil court, earning about US$150 a month.  His family members were all in Pakistan.  His lawyer asked for a lenient sentence on the basis of his guilty plea.

6.The Magistrate noted that the Appellant had stayed unlawfully in Hong Kong for about three weeks and that his unlawful stay would have continued but for his arrest.  He had not surrendered himself voluntarily.  He had a previous conviction for an immigration offence, and no special circumstances or strong humanitarian considerations were put before the court in mitigation

7.The Magistrate referred to The Queen v So Man King and Others [1989]1HKLR142 which laid down 15 months’ imprisonment as the appropriate sentence for this offence.  That guideline sentence already takes into account the plea of guilty.  The Magistrate followed the guideline and sentenced the Appellant to 15 months’ imprisonment.

8.The Appellant applied for a review of his sentence, stressing that he had not wasted the court’s time and had pleaded guilty.  The main ground on which he relied was his mother’s health condition.  Allegedly she suffered a heart attack when made aware of his sentence on 3 October 2009, and was in hospital.  In support of that claim, the Appellant produced a medical document apparently issued by Dr Ahman Subhani, who was described as a heart specialist.  The document stated that the named person had presented with an acute myocardial infarction on 3 October 2009 and that she had been admitted for five days for compulsory management in the Coronary Care Unit.

9.The Magistrate gave the Appellant an adjournment to obtain further medical evidence.  On 26 November 2009, the Appellant produced another document headed “Clinical Notes” signed by Dr Manzoor Rasool Awan, who was described as a “public health specialist, family physician and general surgeon”.  This document purported to certify that the Appellant’s mother was suffering from ischaemic heart disease since 3 October 2009, that her condition was ongoing, and that she might need a cardiac bypass in the near future.  The Magistrate did not consider that the medical document showed that the named person was facing a life-threatening situation.  The certificate merely stated that the condition was ongoing and that there might be a need for an operation in future.

10.The Magistrate considered the court was bound to follow So Man King, and did not accept that the matter raised by the Appellant came into the category of strong humanitarian considerations that had to exist before a lower court could depart from the tariff.  As he stated, there was no evidence that the Appellant’s mother was in a terminal decline, or that he needed to go back to Pakistan forthwith in order to see her alive.  The Appellant’s father and siblings were all in Pakistan and could take care of his mother.

11.The Magistrate found therefore that the Appellant failed to show any ground to justify a suspension of his sentence, or a shorter prison term.  He dismissed the application for review and ordered the original sentence to stand.

12.Today, in front of me, the Appellant relied on the same arguments that he had produced to the Magistrate at the review.  He said that his parents are very old; that his mother was 52.  However, he advised the court on this occasion that he had come to Hong Kong to save his life.  He referred to an application that he had made for asylum on 23 October 2009.  This was some time after the date of his sentence.  He had obviously not advised the Immigration authorities at the time he came across the border that he was an asylum seeker.  He said that he needed to apply for asylum to save his life, and it appeared from his application that he wished to stay in Hong Kong, rather than return to Pakistan.  That appeared to be inconsistent with the mitigation he had urged on the Magistrate at the hearing and also what he had told the Magistrate in his application for review.

13.I have considered the application by the Appellant.  He effectively says now that he does not wish to return to Pakistan, but that if his mother hears that his sentence has been shortened or suspended, she will be cured.

14.The Appellant’s application for asylum will be dealt with in due course.

15.I have considered his application in respect of the appeal against sentence.  I am not satisfied that there is any justification for reducing that sentence, which is a perfectly proper sentence and which followed the guideline.  There was no material before the court to justify interfering with that sentence.

16.This appeal against sentence is dismissed.

Ms Lily Ho May-yu, SPP of the Department of Justice, for the Respondent

Appellant in person